Immigration Consequences of a Fifth Degree Possession of a Controlled Substance Charge

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A controlled substance charge in and of itself likely means that your noncitizen client has the attention of Immigration and Customs Enforcement (“ICE”), and that ICE will monitor the proceedings. ICE may detain your client during the pendency of the criminal case, and the charge alone can cause your client to lose the ability to remain in the United States. A controlled substance offense subjects a person to mandatory ICE detention with no chance of bond, depending on the facts, and even a favorable criminal outcome may still trigger immigration consequences.

Deportation

Any noncitizen convicted of a controlled substance offense at any time after admission to the United States is removable, or deportable. INA § 237(a)(2)(B)(i).[i] This ground of removability requires “a direct link between an alien’s crime of conviction and a particular federally controlled drug.” See Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015). Specifically, to trigger removal, an element of the noncitizen’s conviction must be connected to a drug defined in 21 U.S.C. § 802. Id. Minnesota defines controlled substances more broadly than does the federal government; therefore, a Minnesota controlled substance offense which relates to a drug not found in 21 U.S.C. § 802 will arguably not trigger removability. See Mathis v. United States, 136 S. Ct. 2243, 2251-53 (2016) (finding that courts should follow an “elements-focus” and determine whether the controlling state statute is divisible as to elements of the offense, as opposed to means by which the offense is committed, to determine whether the state statute is broader than relevant federal law).

However, the Board of Immigration Appeals has issued apparently conflicting opinions regarding whether the specific substance involved in an offense is an element of the offense necessary for conviction or simply a means to commit the crime. An Immigration Judge located in Fort Snelling, Minnesota, recently certified this issue to the Board, seeking direction on the ‘elements’ versus ‘means’ analysis as applied to 5th degree possession. While your client’s careful allocution to possession of a controlled substance, without reference to the specific drug, might provide a good defense to removability due to the overbroad Minnesota statute compared to federal law, keep in mind that the issue is evolving and there are currently conflicting views from the immigration bench.

For example, Wilson Law Group is currently defending on appeal the immigration court’s ruling that 5th degree possession does not constitute a removable offense under INA § 237(a)(2)(B)(i). Despite the client’s admission to possession of a particular drug on the list of federally controlled substances, the court found that because the crime of conviction also listed drugs that were not federally controlled, his could not be a removable offense. In other words, paths to a conviction existed that did not implicate federally controlled substances. Due to these alternative methods to satisfy the statute—some involving federally controlled substances, and some not—the immigration court concluded that the drug was only a means to conviction, not an actual element of it. Thus, even if your client allocutes to possession of a particular drug, he may still have a defense to removability.

Inadmissibility

In general, a violation of a controlled substance law renders a noncitizen inadmissible, or ineligible to enter the United States legally. INA § 212(a)(2)(A)(i)(II). If your client with a conviction for possession leaves the country, she may not be able to re-enter the United States. Furthermore, the conviction could make your client ineligible to become a permanent resident because applying for residency is similar to trying to enter the U.S. through an airport for immigration law purposes.

Possible Outcomes

A possession case resolved by your client’s entry into an alternative program may still create immigration difficulties for your client. For example, in some cases, ICE treats entry into drug court or a diversion program as a criminal conviction for immigration purposes due to the required admission of facts or probable cause upon entry into these programs. Similarly, while a Stay of Adjudication can keep a felony conviction off one’s criminal record, it also requires an admission of guilt. ICE will treat this admission as it treats a conviction, and will have the right to initiate removal proceedings against your client.

As part of Minnesota’s new drug laws which went into effect on August 1, 2016, all first time 5th degree controlled substance crimes involving possession of a “trace amount” of controlled substances will be gross misdemeanor rather than felony offenses. Minn. Stat. 125.025, subd. 4. A subsequent 5th degree controlled substance possession offense remains a felony. Id. A “trace amount” consists of less than 0.25 grams of any controlled substance other than heroin, less than 0.05 grams heroin, or one dosage unit or less. Id. While the lowered charging levels can provide a better criminal outcome for your client, the immigration consequences generally remain the same for a gross misdemeanor or felony controlled substance conviction, as the immigration laws refer to violations of a controlled substance law, regardless of the criminal level of conviction.

Conclusion

Any controlled substance offense will likely bring with it serious immigration consequences for your noncitizen client. A 5th degree possession charge itself or a positive criminal outcome may still trigger immigration proceedings. Please contact an attorney at Wilson Law Group with questions or comments. Our attorneys can provide an advisory letter as to the specific immigration consequences your client may be facing.

[i] This basis for deportation does not apply if the noncitizen has “a single offense involving possession for one’s own use of 30 grams or less of marijuana.” INA § 237(a)(2)(B)(i).